Canadian Lawyer

16 M A Y 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m A lawyer's obligation to keep quiet about what a client has told them seems almost as central to the justice system as the Sacrament of Penance is to the Catholic Church. Canon law states that a priest must not reveal what a penitent has said in the confessional, even to save his own life or the life of another, to aid the course of justice or to avert a public calamity. A lawyer's obligation to say nothing might not be quite that strict, but it's still powerful. But not everything a parishioner tells a priest is told in the confessional box. There can be many kinds of communi- cations between a priest and a member of their flock, not just outside the Sacra- ment of Penance but outside the scope of church and religion altogether. The strict rules of the confessional don't apply in those instances. Why should they? The same is true of lawyer and client. Is every communication with your lawyer, no matter what the context and circum- stances, subject to the rules of privilege and confidentiality? Why should that be the case? What if a lawyer is an employee, giv- ing legal counsel to his employer some of the time but on other occasions giving business advice and providing non-legal services? Suppose, one way or another, they learn of illegal behaviour by their employer. Can they report it? Should they report it? Does it matter how they found out about it? Does their profes- sional status as a lawyer override their position as employee and obligations as a citizen? Are they sworn to secrecy or should they blow the whistle? Is it relevant if as a whistle-blower they will receive handsome payment from regula- tory authorities for spilling the beans? It's a murky area, to say the least. A January 2017 case in the United States addressed some of these issues and seemed to chart new ground. Sandy Wadler was general counsel for Bio-Rad Laboratories, a large multinational life sciences company. In February 2013, he sent a memo to Bio-Rad's audit com- mittee calling for an investigation into a possible illegal bribery scheme in China involving Bio-Rad senior management (a subsequent investigation exonerated management). It's unclear exactly how Wadler came to suspect bribery. Shortly after he sent the memo, he was fired. Wadler claimed that his whistleblower activity was protected by federal law. He sued for wrongful dismissal and won substantial damages, including punitive damages. More than that, in a pretrial olicitor-client privilege, an evidentiary rule that protects legal advice from forced disclosure, and the broader and related requirement that a lawyer must keep a client's affairs confidential, are deep features of Canadian law. There are many judicial statements of these principles and the reasons for them. For example, in the 2016 case of Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada (Justice Côté for the majority) said: "Lawyers have the unique role of providing advice to clients within a complex legal system. Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive." And later: "This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as pos- sible and should not be interfered with unless absolutely necessary." O P I N I O N @philipslayton SCOTT PAGE Breaching confidentiality In-house counsel can no longer always hide behind confidentiality, and that is a good thing By Philip Slayton S L E G A L E T H I C S

• Cover